V.K.Asokan vs State Of Kerala
2021 Latest Caselaw 15482 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
            THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
        FRIDAY, THE 23RD DAY OF JULY 2021 / 1ST SRAVANA, 1943
                        WP(C) NO. 8243 OF 2011
PETITIONERS:

    1      V.K.ASOKAN
           S/O.KUNJIKITTEN, SREELAKSHMI,, VILAMBATH HOUSE,
           CHEMBUKAVU, THRISSUR.

    2      SIDHAN S/O.KUNJIKITTAN
           VELAMBATH HOUSE, KANATTUKARA DESOM,, AYYANTHOLE,
           THRISSUR.

    3      DANY ASOKAN S/O.ASOKAN VILAMBATH HOUSE
           CHEMBUKAVU VILLAGE, THRISSUR DISTRICT.

           BY ADVS.
           SRI.M.G.KARTHIKEYAN
           SRI.NIREESH MATHEW


RESPONDENTS:

    1      STATE OF KERALA REPRESENTED BY SECRETARY,
           TAXES (A) DEPARTMENT, GOVT.SECRETARIAT,
           THIRUVANANTHAPURAM - 695 001.

    2      THE COMMISSIONER OF EXCISE
           EXCISE COMMISSIONERATE, THIRUVANANTHAPURAM - 695 001.

    3      THE DEPUTY COMMISSIONER OF EXCISE
           THRISSUR - 680 001.

    4      THE CIRCLE INSPECTOR OF EXCISE
           THRISSUR - 680 001

           BY ADV. SMT.SHEEJA.C.S., GP




    THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
23.07.2021, ALONG WITH WP(C).8274/2011, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
 WP(C) Nos. 8243 and 8274 OF 2011


                                2

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
        THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
   FRIDAY, THE 23RD DAY OF JULY 2021 / 1ST SRAVANA, 1943
                   WP(C) NO. 8274 OF 2011
PETITIONER:

          V.K.ASOKAN, AGED 63 YEARS,
          S/O.VELAMBATH KUNJIKITTEN, SREELAKSHMI,,
          CHEMBUKAVU, THRISSUR.

          BY ADVS.
          SRI.M.G.KARTHIKEYAN
          SRI.NIREESH MATHEW


RESPONDENTS:

    1     STATE OF KERALA
          REPRESENTED BY SECRETARY, TAXES (A) DEPARTMENT,
          GOVERNMENT, GOVT.SECRETARIAT, THIRUVANANTHAPURAM
          -695001.

    2     THE COMMISSIONER OF EXCISE EXCISE
          COMMISSIONERATE, THIRUVANANTHAPURAM - 695 001.

    3     THE DEPUTY COMMISSIONER OF EXCISE
          THRISSUR - 680 001

    4     THE CIRCLE INSPECTOR OF EXCISE
          WADAKKANCHERRY, THRISSUR DISTRICT - 680 623.

    5     THE CIRCLE INSPECTOR OF EXCISE
          THRISSUR - 680001
             BY ADV.SMT.SHEEJA C.S, GP

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
23.07.2021, ALONG WITH WP(C).8243/2011, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
 WP(C) Nos. 8243 and 8274 OF 2011


                              3




               P.V.KUNHIKRISHNAN, J.
             ===================
          WP(C) Nos. 8243 and 8274 OF 2011
             ===================
          Dated this the 23rd day of July 2021

                     JUDGMENT

These two writ petitions are connected and therefore,

I am disposing these two writ petitions by a common

judgment.

2. The 1st petitioner in WP(C) No. 8243 of 2011 is

the petitioner in WP(C) No. 8274 of 2011. The petitioners

in WP(C) No. 8243 of 2011 were the licensee of Foreign

Liquor Shop, FL-1, Nos. 154/97-98 in Thrissur Excise

Range. The 2nd petitioner in the above writ petition was the

licensee of Foreign Liquor Shop, FL-1, No. 155/97-98 of

Thrissur Excise Range. As far as the petitioner in WP(C) No.

8274 of 2011, he is the licensee of Foreign Liquor Shop, FL-

1, No. 160/97-98 of Wadakkancherry Excise Range and FL- WP(C) Nos. 8243 and 8274 OF 2011

1 Shop Nos. 148, 149 and 152/97-98 of Thrissur Excise

Range for the Abkari year 1997-98. Due to the registration

of crime in respect of their toddy shops, the licenses of the

FL-1 shops were cancelled. Subsequently, recovery steps

were initiated against the petitioner for recovering the

arrears. At that stage the petitioners approached this Court

by filing OP Nos. 25331/98 and 24910/98. These two

original petitions were dismissed by the learned Single

Judge of this Court. Subsequently, a writ appeal was filed

challenging the judgment of learned Single Judge. As per

two different orders which is produced as Ext.P1 in both

these writ petitions, the recovery proceedings was stayed.

For better understanding of the case, Ext. P1 stay order in

WP(C) No. 8243 of 2011 is extracted hereunder.

" After detailed arguments we offered to admit the Writ Appeal and examine the matter if the appellants are willing to pay the principal amount within a reasonable period and to execute bank guarantee for the amount of interest without prejudice to their contentions in the appeal and subject to the final decision in the appeal. After taking instructions from the appellants, Sri.Giri, WP(C) Nos. 8243 and 8274 OF 2011

learned counsel for the appellants, submitted that as a condition for admitting the appeal, appellants are willing to pay the principal amount within the time stipulated by this Court and to execute bank guarantee for the amount of interest without prejudice to their contentions in the appeal and subject to the final decision in the appeal.

Hence the writ appeal is admitted. The appellants shall pay the principal amounts demanded from them in respect of Foreign Liquor Shop Nos. 154, 155 and 156 for the year 1997-98 in Thrissur Range within a period of six weeks from today. They shall also furnish bank guarantees for the amounts demand as interest in respect of the said shops within six weeks. If the appellants comply with the above directions, revenue recovery proceedings pursuant to Exts.P12, P13 and P14 will stand stayed until further orders."

3. Admittedly, the petitioners complied the stay

order passed by this Court in the above writ appeals. At

this stage, the government declared an amnesty scheme

(One time settlement scheme), Ext.P2 produced in WP(C)

No. 8243 of 2011 is the amnesty scheme. The petitioners

decided to avail the benefit of this amnesty scheme. They

approached the authority concerned. Moreover, 3 rd

respondent issued Ext.P3 informing that, such an amnesty

scheme is available. Subsequently, Ext.P4 in WP(C) No. WP(C) Nos. 8243 and 8274 OF 2011

8243 of 2011 and Ext.P5 in WP(C) No. 8274 of 2011 was

issued by the Assistant Excise Commissioner, Thrissur to

the 1st petitioner to withdraw any pending cases challenging

the recovery. After receiving Exts.P4 and P5 produced in

the above writ petitions, the petitioners filed Ext.P5 in

WP(C) No. 8243 of 2011 and Ext.P6 in WP(C) No. 8274 of

2011 in the respective writ appeals. In the affidavit filed in

the writ appeals, it is specifically stated that, they want to

avail the amnesty scheme and for that purpose, they don't

want to proceed with the appeal. Based on these affidavits

and petitions filed in the respective writ appeals, the writ

appeals were dismissed as withdrawn, the judgment in writ

appeal No. 30/2005 is produced as Ext.P6 in WP(C) No.

8243 of 2011 and the judgment in writ appeal No.

966/2005 is produced as Ext.P7 in WP(C) No. 8274 of

2011. Thereafter, Exts.P7 and P8 orders were passed by

the Assistant Excise Commissioner, Thrissur accepting the

applications of the petitioners in WP(C) No. 8243 of 2011 WP(C) Nos. 8243 and 8274 OF 2011

and they were directed to pay the prescribed amount as

per condition No. 5 in Ext.P2 government order. Similar

orders were passed in favour of the petitioner in WP(C) No.

8274 of 2011 and the same is produced as Exts.P8 and P10

in that writ petition. These orders were passed in 2008.

4. Subsequently, the petitioners in WP(C) No. 8243

of 2011 received Exts.P9 to P12 together. According to the

petitioners, Exts.P11 and P12 are the orders recalling

Exts.P7 and P8 and Ext.P9 and P10 are the consequential

notices. Similarly the petitioner in WP(C) No. 8274 of 2011

received Exts.P12 to P15 in which Ext.P14 and P15 are the

orders cancelling the earlier order passed by the Assistant

Excise Commissioner and the consequential notices are

Exts.P12 and P13. Aggrieved by these orders these two writ

petitions are filed.

5. Heard the learned counsel for the petitioners and

the learned Government Pleader.

6. The learned counsel for the petitioners submitted WP(C) Nos. 8243 and 8274 OF 2011

that, the order passed by the Deputy Commissioner of

Excise Thrissur cancelling the order passed by the Assistant

Excise commissioner by which the benefit of amnesty

scheme extended is without any jurisdiction. According to

the learned counsel, the Deputy Commissioner of Excise

passed the order without hearing the petitioners. Moreover,

the learned counsel also submitted that, the Deputy

Commissioner of Excise, Thrissur passed the order based

on a letter from the Excise Commissioner,

Thiruvanathapurram. The contents of the letter issued by

the Excise Commissioner is not clear from the order. The

learned counsel submitted that, the Excise commissioner

already directed the Deputy Commissioner of Excise to

cancel the order passed by the Assistant Commissioner,

Thrissur. The order passed by the Deputy Commissioner of

Excise are consequential orders after the letter issued by

the Excise Commissioner. The Excise Commissioner also

passed this order without hearing the petitioners. The WP(C) Nos. 8243 and 8274 OF 2011

learned counsel submitted that, once the application for

getting the benefit of amnesty scheme is submitted and the

same is accepted by the officers of the respondent, they

have no right to cancel the same. Moreover, it is also

submitted that, the order passed by the Deputy

Commissioner of Excise is without hearing the petitioners

also. The learned counsel submitted that, it is a clear case

in which the impugned orders in these writ petitions are

behind their back and hence unsustainable.

7. The learned Government Pleader submitted that,

a detailed counter affidavit is filed by the respondents in

these writ petitions. The learned Government Pleader

submitted that, the order passed by the Assistant Excise

Commissioner, Thrissur is against the Rule 6(25) of the

Abkari Shops (Disposal in Auction) Rules, 1974. The

learned Government Pleader submitted that, the orders

impugned in these writ petitions are passed in the light of

the specific provisions in the Abkari Shops (Disposal in WP(C) Nos. 8243 and 8274 OF 2011

Auction) Rules, 1974. The learned Government Pleader

submitted that, once the writ appeal is dismissed as

withdrawn, Rule 6(25) of the Abkari Shops (Disposal in

Auction) Rules, 1974 will come into play. In such

circumstances, the impugned orders passed by the

authorities are perfectly legal. If there is a mistake

committed by an officer, the learned Government Pleader

submitted that, the higher officials are justified in

correcting the same and there is nothing wrong in it. The

learned Government Pleader also submitted that, the

impugned orders are passed based on specific Rule in the

Abkari Shops (Disposal in Auction) Rule, 1974 and

therefore, even if the petitioners were not heard, no

prejudice is happened to the petitioners. According to the

learned Government Pleader, Clause 5 of Ext.P2 amnesty

scheme is not applicable in the facts and circumstance of

the case.

8. The short points to be decided whether the WP(C) Nos. 8243 and 8274 OF 2011

impugned orders in these writ petitions are sustainable or

not.

9. It is an admitted case that, as per the interim

orders passed in writ appeal Nos. 30/2005 and 966/2005,

the petitioners paid the amount and also complied other

condition in those orders. It is also an admitted fact that,

the respondents informed the petitioners that, there is an

amnesty scheme and thereafter, the petitioners approached

the respondent for getting the benefit of amnesty scheme.

It is also an admitted fact that, the Assistant Excise

Commissioner, Thrissur issued notice to the petitioners for

withdrawing cases pending before the courts in connection

with the recovery of the amount and based on that, two

separate affidavits are filed in writ appeal Nos. 30/2005

and 966/2005 for withdrawing the writ appeal with specific

reason for the withdrawal. In the affidavits, it is clearly

stated that, the petitioners want to avail amnesty scheme

and for that reason, they want to withdraw the writ WP(C) Nos. 8243 and 8274 OF 2011

appeals. This Court allowed to withdraw the writ appeals.

It is also an admitted fact that, in both these cases, the

Assistant Excise Commissioner, Thrissur passed separate

orders accepting the application for amnesty scheme and

the petitioners paid the amount as per the orders passed

by the Assistant Excise Commissioner, Thirssur, who passed

the orders in 2008. Thereafter, in the year 2011, without

hearing the petitioners, the Excise commissioner,

Thiruvanathapuram issued a letter to the Deputy

Commissioner of Excise, Thrissur informing that, the order

passed by the Assistant Excise Commissioner, Thrissur is

not legal and is not in accordance to the amnesty scheme

published by the government. Based on the letter issued by

the Excise Commissioner, the Deputy commissioner of

Excise, Thrissur cancelled the orders passed by the

Assistant Excise Commissioner. A perusal of the impugned

orders in these cases, it is clear that, all these orders were

passed behind the back of the petitioners. No opportunity WP(C) Nos. 8243 and 8274 OF 2011

of hearing is given to the petitioners. In the year 2008, an

amnesty scheme facility is given to the petitioners and they

paid the amount. After about three years, even without

hearing the petitioners the authorities are cancelling the

same.

10. When these writ petition came up for

consideration, the learned counsel for the petitioners

submitted that, they will pay the amount subject to the

final decision of the writ petitions. Accordingly a common

order was passed. The common order dated 16.03.2011

WP(C) Nos. 8243 and 8274 of 2011 is extracted hereunder;

" Admit. The learned Government Pleader takes notice on behalf of respondents.

2. I have heard the learned Senior Counsel for the petitioners and also the learned Government Pleader. The learned Senior Counsel submitted that the petitioner may be permitted to remit the amount demanded as per Exts.P12 and P13 in W.P(C) No.8274/2011, and as per Exts.P9 and P10 in W.P(C) No.8243/2011, subject to the result of this writ petition and in tune with the Amnesty Scheme.

3. The petitioners in the above writ WP(C) Nos. 8243 and 8274 OF 2011

petitions are, accordingly, permitted to pay 25% of the amount demanded from them on or before 15.04.2011 and the balance amount in three installments commencing from 15.5.2011. Needless to say that the rest of the installments shall be paid on the 15th day of every succeeding months in tune with the Amnesty Scheme in Ext.P2. It is made clear that liability of the petitioners to satisfy the demands against Exts.P12 and P13 in W.P(C) No.8274/2011 and Exts.P9 and P10 in W.P(C) No.8243/2011 will be decided in the writ petition and the payments, if effected in terms of this order, would be conditional subject to the result of these writ petitions."

11. Admittedly, the petitioners paid this amount.

There is observations in the above interim order that, the

payment of the amount will be subject to the final decision

of the writ petition.

12. After hearing both sides, according to me, it is a

clear case of violation of natural justice and the impugned

orders in these writ petitions are unsustainable for the

simple reason that, these orders were passed behind the

back of the petitioners. Therefore, according to me, these

impugned orders are to be set aside.

13. According to me, the Excise Commissioner should WP(C) Nos. 8243 and 8274 OF 2011

reconsider the entire matter, in the light of the above

observations in these writ petitions. I don't want to make

any observation about the merit of the case. But, I am not

satisfied the way in which the impugned orders are passed

and that also after a beneficial order is passed in favour of

the petitioners. The power of 3 rd respondent to cancel the

orders passed by Assistant Excise Commissioner, is also not

clear. No statutory provision to intervene in such situation

by the 3rd respondent is also not pointed out. Let it be

decided by the 2nd respondent in these writ petitions.

Therefore, the impugned orders in these writ petitions can

be set aside and the 2nd respondent can be directed to

reconsider the matter afresh, after giving an opportunity of

hearing to the petitioners. Therefore, these writ petitions

are disposed in the following manner,

1. Exts.P9 to P12 in WP(C) No. 8243 of 2011 are set

aside. Ext.P12 to P15 in WP(C) No. 8274 of 2011 are set

aside.

WP(C) Nos. 8243 and 8274 OF 2011

2. The Excise Commissioner is directed to

reconsider the entire issue in the light of the above

observations in these writ petitions and also after giving an

opportunity of hearing to the petitioners.

3. The above exercise should be completed as

expeditiously as possible, at any rate, within a period of

four months from the date of receipt of a copy of the

judgment.

4. The amount already paid by the petitioners as

per the interim order in these writ petitions will be subject

to the final decision of the Exercise Commissioner.

(Sd/-) P.V.KUNHIKRISHNAN JUDGE LU WP(C) Nos. 8243 and 8274 OF 2011

APPENDIX OF WP(C) 8243/2011

PETITIONERS EXHIBITS

EXHIBIT P1 PHOTOCOPY OF THE ORDER DATED 14.1.2005 IN WA.NO.30/2005 PASSED BY THIS HON'BLE COURT.

EXHIBIT P2 PHOTOCOPY OF THE ORDER, GO(MS)NO.108/08/TD DATED 26.5.2008 ISSUED BY THE GOVERNMENT.

EXHIBIT P3 PHOTOCOPY OF THE NOTICE DATED 5.6.2008 ISSUED BY THE 5TH RESPONDENT.

EXHIBIT P4 PHOTOCOPY OF THE LETTER DATED 22.7.2008 ISSUED BY THE ASST.EXCISE COMMISSIONER, THRISSUR.

EXHIBIT P5 PHOTOCOPY OF THE PETITION FOR WITHDRAWAL DATED 29.7.2008 FILED BEFORE THIS HON'BLE COURT, I.A.NO.692/2008 IN WA NO.30/2005.

EXHIBIT P6 PHOTOCOPY OF THE JUDGMENT DATED 13.8.2008 IN WA.NO.30/2005 PASSED BY THIS HON'BLE COURT.

EXHIBIT P7 PHOTOCOPY OF THE ORDER NO.R6-1296/98-1 DATED 4.12.2008 PASSED BY THE ASST.EXCISE COMMISSIONER, THRISSUR.

EXHIBIT P8 PHOTOCOPY OF THE ORDER NO.R6-1296/1998 DATED 4.12.2008 PASSED BY THE ASST.EXCISE COMMISSIONER, THRISSUR.

EXHIBIT P9 PHOTOCOPY OF THE NOTICE DATED 7.3.2011 ISSUED BY THE 3RD RESPONDENT, NO.R6-

1296/98-D.

WP(C) Nos. 8243 and 8274 OF 2011

EXHIBIT P10 PHOTOCOPY OF THE NOTICE DATED 7.3.2011 ISSUED BY THE 3RD RESPONDENT, NO.R6-

1296/98-C.

EXHIBIT P11 PHOTOCOPY OF THE ORDER NO.R6-1296/1998-

1 DATED 7.3.2011 PASSED BY THE 3RD RESPONDENT.

EXHIBIT P12 PHOTOCOPY OF THE ORDER NO.R6-1296/98 DATED 7.3.2011 PASSED BY THE 3RD RESPONDENT.

WP(C) Nos. 8243 and 8274 OF 2011

APPENDIX OF WP(C) 8274/2011

PETITIONERS EXHIBITS

EXHIBIT P1 PHOTOCOPY OF THE ORDER DATED 29.6.2005 IN WA.NO.966/2005 PASSED BY THIS HON'BLE COURT.

EXHIBIT P2 PHOTOCOPY OF THE ORDER, GO(MS)NO.108/08/TD DATED 26.5.2008 ISSUED BY THE GOVERNMENT.

EXHIBIT P3 PHOTOCOPY OF THE NOTICE DATED 6.6.2008 ISSUED BY THE 4TH RESPONDENT.

EXHIBIT P4 PHOTOCOPY OF THE NOTICE DATED 5.6.2008 ISSUED BY THE 5TH RESPONDENT.

EXHIBIT P5 PHOTOCOPY OF THE LETTER DATED 22.7.2008 ISSUED BY THE ASST.EXCISE COMMISSIONER, THRISSUR..

EXHIBIT P6 PHOTOCOPY OF THE PETITION FOR WITHDRAWAL DATED 05.7.2008 FILED BEFORE THIS HON'BLE COURT, I.A.NO.672/2008 IN WA.NO.966/2005.

EXHIBIT P7 PHOTOCOPY OF THE JUDGMENT DATED 7.8.2008 IN WA.NO.966/2005 PASSED BY THIS HON'BLE COURT.

EXHIBIT P8 PHOTOCOPY OF THE ORDER NO.R6-1884/98 DATED 30.9.2008 PASSED BY THE ASST.EXCISE COMMISSIONER, THRISSUR.

EXHIBIT P9 PHOTOCOPY OF THE CHALAN EVIDENCING THE PAYMENT OF RS.1,12,462/-

EXHIBIT P10 PHOTOCOPY OF THE ORDER NO.R6-1296/1998 DATED 30.1.2009 PASSED BY THE 3RD WP(C) Nos. 8243 and 8274 OF 2011

RESPONDENT.

EXHIBIT P11 PHOTOCOPY OF THE CHALAN EVIDENCING THE PAYMENT OF RS.2,58,832/-.

EXHIBIT P12 PHOTOCOPY OF THE NOTICE DATED 7.3.2011 ISSUED BY THE 3RD RESPONDENT, NO.R6-

1296/98-B.

EXHIBIT P13 PHOTOCOPY OF THE NOTICE DATED 7.3.2011 ISSUED BY THE 3RD RESPONDENT, NO.R6-

1296/98-A.

EXHIBIT P14 PHOTOCOPY OF THE ORDER NO.R6-1296/1998-

3 DATED 7.3.2011 PASSED BY THE 3RD RESPONDENT.

EXHIBIT P15 PHOTOCOPY OF THE ORDER NO.R6-1296/98-2 DATED 7.3.2011 PASSED BY THE 3RD RESPONDENT.

RESPONDENTS EXHIBITS : NIL

//TRUE COPY//

PA TO JUDGE